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The public domain – a copyright primer

“If I have seen further it is by standing on the shoulders of giants.” – Sir Isaac Newton

Before the first copyright law was ever created, authors had no rights in or to their written works. The common law provided no judicial remedy for the infringement of an expressed original idea. It was a copying free-for-all as books, songs, paintings and plays were part of the “commons”, available for anyone to copy or reproduce without permission.

That is what the public domain essentially is. It is the collection of intellectual works that can be copied, used and re-used without restriction or payment. With the advent of copyright legislation, public domain primarily came to mean that the prescribed term of copyright protections had expired for a work and that the heirs or successors of the author, composer, artist or playwright could no longer refuse to give permissions to copy or sue for infringements of the work by third parties.

Public Domain in Canada

Now, public domain varies from country to country depending on the statutory term of copyright protection, typically described as the remaining life of the author plus a certain number of years after the death of the author. In Canada, the term of protection has generally been life plus 50 years since 1924 (subject to a few exceptions), such that every January 1st, works of authors who died 50 (calendar) years prior lose their exclusive monopoly rights.

The copyright term rule is also known as “50 years pma”, where “pma” means post mortem auctoris. Interestingly, prior to the 1994 passage of the NAFTA Implementation Act, the 50 years pma in Canada was calculated from the actual date of death of the author, whereas since that time it is calculated from the end of the calendar year in which the author’s death occurs.

Thus for January 1, 2013 in Canada, the magic number is 1962: works of creators who died during that year are now in the public domain. In the US and many other jurisdictions, the statutory term of copyright protection was extended to life plus 70 (i.e. 70 years pma) during the 1990s and published works will not enter the public domain until at least 2019 in those countries. For example, Elvis Presley died in 1977, so his songs and performances should only enter the public domain in 2048 unless the US further extends its term of copyright protection.

Impact on Culture

Public domain is generally understood to be synonymous with open and shared public knowledge and more generally an informed society. When copyright ends, works enter our collective culture, prices fall, new editions come out, fresh versions of songs are performed, new films are made and people build upon what came before. Human innovation and popular culture flourish when ideas are free for all to use. In fact, several countries celebrate Public Domain Day every January 1st. The long (and increasingly longer) terms of monopoly protection are viewed as encroachments on the creative commons of ideas and intellectual advancement. After all, copyright protection was originally set to be 14 years only (with one 14 year renewal), similar to current statutory trade-mark monopoly protection of 15 years (albeit with unlimited renewals).

Other Categories of Public Domain

In addition to works that have entered the public domain because the copyright term of protection has expired, there are two other categories worthy of note: (a) works that are not copyrightable (e.g. ideas, facts, numbers, titles, names, slogans, processes, systems, etc.) and (b) works that have been dedicated or assigned to the public domain by their creators (e.g. academic research papers, open source software, gaming engines and platforms, etc.).

Exploiting the Public Domain

How can a business take advantage of public domain works for profit? One way to address that question is to consider the particular exclusive rights that the copyright owner held prior to their deemed expiry. In Canada, under section 3 of the Copyright Act, the owner has the “sole right to produce or reproduce a work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof”. As such, a business could 1. Produce, 2. Reproduce, 3. Perform and/or 4. Publish public domain works for economic gain, without requesting any permission or paying any compensation or royalty to the former owner.

The Copyright Act goes on to provide eleven illustrative examples of those four exclusive monopoly rights, namely the rights (my underlining of the “rights’ verbs):

to produce, reproduce, perform or publish any translation of the work;

in the case of a dramatic work, to convert it into a novel or other non-dramatic work;

in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise;

in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed;

in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work;

in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication;

to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan;

in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program;

in the case of a musical work, to rent out a sound recording in which the work is embodied;

in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner; and

to authorize any such acts.

Examples of Public Domain Usage

There are many examples of businesses successfully using public domain works. Probably the best known and most lucrative use of such works has been by Disney Corporation; here are a few examples: Snow White from the Brothers Grimm folk tale; Christmas Carol from Charles Dickens; Hunchback of Notre Dame by Victor Hugo; Little Mermaid by Hans Christian Anderson; Jungle Book by Rudyard Kipling; Adventures of Huck Finn by Mark Twain; 20,000 Leagues Under the Sea by Jules Verne; Pinocchio by Carlo Collodi; and Bug’s Life from Aesop’s Fables. It is ironic that Disney, who made vast fortunes using public domain works in its animated films, was the primary catalyst for the Copyright Term Extension Act (oft referred to as the Mickey Mouse Protection Act) of 1998 which extended copyright terms in the United States by an extra 20 years and prevented those very valuable Disney works from entering the public domain for a long, long time to come.

Be creative. Stand on the shoulders of giants. The possibilities are endless. So much content is available to you without restriction or cost. Think of any creator who died in 1962 or earlier and consider how to exploit one of her or his public domain works, whether as part of your business model (e.g. advertising campaign) or in a new business venture (e.g. on-line content). But do it soon, as Canada will likely extend its term of copyright protection, to 70 years pma, as part of the on-going Trans-Pacific Partnership treaty negotiations.

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